Subdiv 2Testamentary capacity

Subdivision 2—Testamentary capacity 5—Will of minor (1) Subject to this Act, a minor cannot make, alter or revoke a will. (2) A minor who is or has been married may make, alter or revoke a will as if the minor were an adult. (3) A minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect unless the contemplated marriage is solemnised. 6—Will of minor authorised by Court (1) The Court may make an order authorising a minor— (a) to make a will in specific terms approved by the Court; or (b) to alter a will in specific terms approved by the Court; or (c) to revoke a will. (2) An order under this section may be made on application by a minor or by a person acting on behalf of a minor. (3) The Court may impose such conditions on an authorisation under this section as the Court thinks fit. (4) Before making an order under this section, the Court must be satisfied that— (a) the minor understands the nature and effect of the proposed will or alteration or revocation of the will; and (b) the proposed will or alteration or revocation of the will accurately reflects the intentions of the minor; and (c) it is reasonable in all the circumstances that the order should be made. (5) A will, or instrument altering or revoking a will, made pursuant to an order under this section— (a) must be executed as required by law and 1 of the attesting witnesses must be the Registrar or the Public Trustee; and (b) must be deposited for safe custody with the Registrar under Division 6. (6) A will made pursuant to an order under this section may not be withdrawn from deposit with the Registrar by the minor unless— (a) the Court has made an order authorising the minor to revoke the will; or (b) the minor has reached the age of 18 years or is married. 7—Will of person lacking testamentary capacity authorised by Court (1) The Court may make an order authorising— (a) the making or alteration of a will, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity; or (b) the revocation of a will on behalf of a person who lacks testamentary capacity. (2) An order under this section may be made on the application of any person with the permission of the court. (3) An authorisation under this section may be granted on such conditions as the Court thinks fit. (4) Before making an order under this section, the Court must be satisfied that— (a) the person lacks testamentary capacity; and (b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if the person had testamentary capacity; and (c) it is reasonable in all the circumstances that the order should be made. (5) In considering an application for an order under this section, the Court must take into account the following matters: (a) any evidence relating to the wishes of the person; (b) the likelihood of the person acquiring or regaining testamentary capacity; (c) the terms of any will previously made by the person; (d) the interests of— (i) the beneficiaries under any will previously made by the person; and (ii) any person who would be entitled to receive any part of the estate of the person if the person were to die intestate; and (iii) any person who would be entitled to claim the benefit of Part 6 in relation to the estate of the person if the person were to die; and (iv) any other person who has cared for or provided emotional support to the person; (e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will; (f) the likely size of the estate; (g) any other matter that the Court considers to be relevant. (6) An order may be made under this section in relation to a minor. (7) The Court is not bound by rules of evidence in proceedings under this section. (8) The following persons are entitled to appear and be heard at proceedings under this section: (a) the person in relation to whom the order is proposed to be made; (b) a legal practitioner representing the person or, with the permission of the Court, some other person representing the person; (c) the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993; (d) the person's administrator (if any) appointed under the Guardianship and Administration Act 1993; (e) the person's guardian (if any) appointed under the Guardianship and Administration Act 1993; (f) the person's manager (if any) appointed under the Aged and Infirm Persons' Property Act 1940; (g) the person's attorney (if any) appointed under an enduring power of attorney; (h) any other person who has, in the Court's opinion, a proper interest in the matter. (9) In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit. (10) A will or instrument altering or revoking a will made pursuant to an order under this section must be executed— (a) by the will or instrument being signed by the Registrar; and (b) by the will or instrument being sealed with the seal of the Court. (11) The will or instrument altering or revoking a will must be retained by the Registrar and will be taken to have been deposited with the Registrar under Division 6. (12) The will may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless— (a) the Court has made an order under this section authorising the revocation of the will (in which case the Registrar must withdraw it on presentation of a copy of the order); or (b) the person has acquired or regained testamentary capacity. (13) In this section— testamentary capacity means the capacity to make a will. The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.